Ken Cloke: Free Speech on Campus: What Colleges and Universities Can Do - And Lorelie Kelly on How Universities Can Strengthen our Democratic System



Newsletter #203 — January 30, 2024


Before we get to Ken's article, we are sharing a brief announcement from Lorelei Kelly who has long been working on capitol hill in DC in an effort to modernize and improve the functioning of Congress.   Following that is Ken's article about the free speech controversy currently raging on university campuses, followed by a short discussion we had with Ken about that.


Higher Ed Opportunity to Really Make a Difference!

By Lorelei Kelly

Today, institutions of higher education across the USA have an unprecedented opportunity to strengthen American democracy by bolstering institutional capacity in the US House of Representatives.  Last year, Congress changed its rules to allow member offices to pay for staff continuing education, specifically skill building certifications. This change happened because of the Select Committee on the Modernization of Congress-- a bipartisan group of members who have worked together to pass 202 recommendations to bring Congress into the modern world.  This is a huge accomplishment in an institution that is working at historically low levels of staff capacity and employing 19th century communications methods in lawmaking.

Between July and October of 2023, I conducted a research sprint with Hill staff that revealed significant insights on what staff desire from higher ed. Most of our discussions revolved around how to implement AI and machine learning in the workflow of Congress. Staff also desire timely subject matter knowledge to boost their ability to conduct oversight, engage with constituents and improve lawmaking.   Any institution of higher ed can offer these courses--and in so doing strengthen capacity, encourage familiarity between academia and Congress and also build productive regional relationships among state delegations.  

Here is the memo of  my research findings.  It offers detailed instructions on how higher ed can implement this opportunity.

Ken Cloke: Free Speech on Campus: What Colleges and Universities Can Do

by Ken Cloke

January 19, 2024

”Oski Dolls, Pompom Girls,
U.C. all the way!
Oh, what fun it is to have
Your mind reduced to clay!
Civil Rights, politics,
Just get in the way.
Questioning authority
When you should obey.
Sleeping on the lawn in a
Double sleeping bag [during a sit-in]

Doesn't get things done,
Freedom is a drag.
Junk your principles,
Don't stand up and fight,
You won't get democracy
If you yell all night.”

"Oski Dolls"; by Joe La Penta, FSM Record, to "Jingle Bells."

As I write, it is now the year of the 60th anniversary of the Free Speech Movement (FSM) at U.C. Berkeley, in which I was an active participant (I am at the far right in the photo.) It is also a time when free speech issues are again triggering campus conflicts, largely because of intense polarization over fighting in Gaza, and the mutually antagonistic activities of student supporters of Israel or Palestine. The students who are waging these battles are, of course, quite different from those who participated in FSM, as are the historical conditions in which they have arisen, yet the issues they raise regarding free speech and civil liberties on university campuses, as well as their meaning regarding the relationship between law and politics, or between democracy and revolution, reveal many similarities. It is also a time when democracy is regarded as expendable by many, including, as I write, a major presidential candidate supported by a major political party with significant popular support and a strong likelihood of winning. Under these conditions, as white supremacist, neo-Nazi, anti-Semitic, Islamophobic, fascistic organizations are organizing openly and gaining ground, the attack on “liberal” higher education, and the related push to restrict free speech and civil liberties on campus take on different meanings.

During the 1960’s, student activists complained that universities, shaped during the 1950’s by political conservatism, McCarthyism, and the Cold War, was increasingly seen as irrelevant to the pressing social issues that began to emerge in the late 1950’s and early 1960’s. Here, for example, is Mario Savio, speaking in 1962 on the nature of the university and the reasons for political alienation among students:

Many students here at the university, many people in society, are wandering aimlessly about. Strangers in their own lives, there is no place for them. They are people who have not learned to compromise, who, for example, have come to the university to learn to question, to grow, to learn—all the standard things that sound like clichés because no one takes them seriously. And they find at one point or another that for them to become part of society, to become lawyers, ministers, businessmen, people in government, that very often they must compromise those principles which were most dear to them. They must suppress the most creative impulses that they have; this is a prior condition for being part of the system. The university is well structured, well tooled, to turn out people with all the sharp edges worn off, the well-rounded person. The university is well equipped to produce that sort of person, and this means that the best among the people who enter must for four years wander aimlessly much of the time questioning why they are on campus at all, doubting whether there is any point in what they are doing, and looking toward a very bleak existence afterward in a game in which all of the rules have been made up, which one cannot really amend.

As a result of my personal experiences during the 1960’s, I have spent a large part of my life thinking about and advocating for free speech, not only in the Free Speech Movement, but as a lawyer for various “movement” activists and organizations in the late 1960’s, and later as a law professor teaching Constitutional Law in the 1970’s. Starting in the 1980’s, I spent a still larger part of my life as a mediator, conflict resolver, and dialogue facilitator, helping thousands of people and hundreds of organizations with vastly differing opinions, many mired in hatred and enmity, discover that they could somehow, unexpectedly, actually talk to each other, engage in open, honest, constructive dialogue, improve their understanding, and solve common problems. In my experience, conflict resolution methods and processes allow people on all scales, from individuals to couples, families, schools, workplaces, and organizations--especially colleges and universities--to raise free speech to a significantly higher level of skill, where it becomes possible for authentic communication, empathetic engagement, collaborative problem solving, and profound learning to take place. I have written several books outlining how to conduct these processes, most recently in Politics, Dialogue, and the Evolution of Democracy, and The Magic in Mediation.

Where We Fell Short in FSM

Walter Benjamin wrote that “Every emergence of fascism bears witness to a failed revolution.” In hindsight, it is important to note that not only did FSM succeed in enormously expanding the scope and range of free speech on campus at Berkeley, it also fell short of reaching its’ larger goal of revolutionizing the practice of free speech, and in transforming universities into centers for political discussion, learning, and engagement.

Instead, we are now witnessing a barrage of conservative attacks on universities and colleges, triggered by profoundly adversarial, campus conflicts over the war in Israel, Gaza, Lebanon, and the West Bank, which ultimately appear to be aimed at turning campuses back into havens for repression of unpopular thoughts, political conformity, and apathy. The alternative, as I see it, is not to repress civil liberties on campus, or wage political battles more aggressively, but to transform these conflicts into opportunities for dialogue, understanding, problem solving, and collaborative negotiation.

One of the early founders of modern mediation and advocates of participatory democracy was Mary Parker Follett, who wrote The New State in 1918, in which she insightfully observed:

“[I]t is not merely that we must be allowed to govern ourselves, we must learn how to govern ourselves; it is not only that we must be given ‘free speech,’ we must learn a speech that is free; ... [I]t is not only that we must invent machinery to get a social will expressed, we must invent machinery that will get a social will created.”

It is clear, of course, that it is possible to have free speech, yet lack “a speech that is free;” to have student power, yet not know how to use it; to express an outdated social will, yet lack the skills to create a new one. But it is this second set of tasks that allow us to move from purely procedural forms of democracy to higher order substantive ones; and from a mere transfer of power between conflicted and competing groups to a genuinely revolutionary transformation and transcendence of adversarial, zero-sum, violent, domineering, power-based communications, processes, and relationships. Some of the hostility expressed toward universities today is an effort to turn the clock back to the sort of university Savio complained of; to return to the 1950’s; before there was affirmative action or diversity in enrollment and hiring; before there were Black, Women’s, Latino and LGBTQ Studies programs; before issues of race and gender and other social problems were regarded as legitimate to speak about publicly, or as topics for academic research and teaching.

But some of the hostility also emerges, I believe, from the failure of universities to fully live up to their Enlightenment promise, by becoming – not mere “marketplaces” of ideas -- but symphonies, laboratories, workshops, playgrounds, and dances of ideas. How might colleges and universities achieve this? We can begin by affirming five important ideas about political differences. First, it is not helpful to try to silence or minimize the passion and commitment people feel for what they believe in and want for the world. Second, it is helpful to assist people in turning their passion and commitment from personally attacking their opponents to jointly tackling their problems, seeking to understand what lies beneath the surface of their conflicted beliefs and desires, and searching together for core values and principles on which they can fashion solutions. Third, it is possible, even for political activists in the grip of antagonistic passions and beliefs, to realize that they are all members of the same human family; the same campus, neighborhood, and community; the same species and planet. Fourth, it is helpful to acknowledge that because we all live on the same planet, short of mass murder and genocide, no one is going anywhere, so the only real, sensible choice we have is to learn how to live and work together. Fifth, we are now facing serious global problems that require us to collaborate across our differences and find ways of solving problems together if we are going to survive.

At the level of process, rather than content, we can begin by recognizing that the ability to speak openly, honestly, empathetically, and skillfully is essential for successful problem solving on all scales, from navigating and improving interpersonal relationships to making difficult political decisions. It has been repeatedly demonstrated in studies of small groups that diversity, dialogue, and democratic decision-making are key elements in problem solving, especially where problems are complex, layered, and multi-faceted. Yet when people are in conflict, whether personal or political, they often lose their perspective, forget their values and goals, and revert to lower-level child-like communications, adversarial negotiations, autocratic or dictatorial problem solving, unilateral decision-making, and zero-sum processes that encourage them to believe that dialogue, collaboration, learning, and problem solving are entirely impossible. Yet it is possible, for example, for universities and colleges to bring together Israelis and Palestinians, and opponents on all kinds of issues, and help them engage in civil dialogues, storytelling sessions, empathy building exercises, joint critiques of historical narratives, problem solving practices, political debates, brainstorming, research, collaborative negotiation, ground rule setting, Truth and Reconciliation Commissions, restorative justice circles, mock mediations, model UN sessions, and many similar processes.

It is equally possible for every university and college to hire a full-time ombudsperson to help design and facilitate these processes, train faculty and students as peer mediators and volunteer dialogue facilitators; establish campus clinical programs in social change, including community organizing, mediation, and effective political advocacy; and to create academically rigorous majors with required courses in mediation, dialogue, collaborative negotiation, consensus building, conflict resolution, international peace building, and similar topics.

It is possible for universities and colleges to assign students to on-going or episodic dialogue groups; to conduct teach-ins with diverse speakers and points of view, and opportunities for small group discussion; to maintain a list of professional mediators and dialogue facilitators who would be able to intervene early, when divisive issues threaten to turn political differences into battles for campus supremacy; and to invite participants and advocates to join in open, campus-wide learning experiences – not by shutting down debate, banning unpopular groups, or expelling student advocates, but drawing them into honest conversation with those whose ideas they disparage.

This happened with great success at various moments during FSM, as when Mario Savio invited fraternity and sorority critics who arrived to disrupt a rally to instead come to the microphone and speak to the audience of FSM supporters; or when anyone could say whatever they thought or felt from on top of the police car; and at virtually every mass meeting when the floor was open for comments.

More importantly, the entire FSM and political movement experience in the 1960s, for me and thousands of others, was one of the most significant educational and learning experience of my life. UC Berkeley certainly gave me an education, though it wasn’t entirely the one they meant to deliver. Instead, I learned profoundly important lessons about how to stand up for what I believed in, how to organize and work with people I didn’t always agree with to bring about social change, how to disagree politically and still work collaboratively to achieve common ends, and how to disagree – even over principles -- yet learn something valuable from those disagreements.

Through these experiences, and later from my practice as a mediator, I learned that simply shifting the way we speak to each other, without tempering in the least the content of our beliefs and values, automatically encourages listening and dialogue, elicits authentic communications, supports collaborative negotiation, invites deep learning, and gradually rebuilds the trust that is essential for joint problem solving, without having to force others to support the content of what we take to be true.

In the absence of these higher order communication, collaboration, and conflict resolution skills and processes, it is easy to slip into a state of impasse that encourages angry, hostile individuals and groups to exercise their freedom of speech primarily for the purpose of blocking or destroying the free speech of others -- as occurred, for example, in Nazi Germany during the late 20s and early 30s.

Unfortunately, when we oppose free speech rights for our opponents, we make the future repression of our own speech far more likely. We also cheat ourselves and others out of the opportunity to turn highly adversarial denunciations into learning, and slip into pointless, hostile, destructive communications that encourage others to suppress democracy, both in content, and in processes and relationships. In the end, whatever connects us empathetically and collaboratively reduces our resort to fear, distrust, and hatred, which are the deeper truths of our hostility toward others, and encourages communication and learning, which are often the unstated goals of free speech, and the implicit promises of higher education.

One of the most enduring and heartrending sources of human tragedy arises from the assumption that history will continue moving in the direction it is currently heading. Yet history has many sources, with innumerable, complex, and contradictory inputs that make it, like the weather, unpredictable and highly sensitive to initial conditions. How many people were able to accurately predict the 1930’s bust in the midst of the 1920’s boom, or the ‘40s from the 30’s, the 50’s from the 40’s, the 60’s from the 50’s, etc.? And of those who did, were they not treated like the legendary Trojan priestess Cassandra, who was deadly accurate but disbelieved by all?

How, then, do we discern our future direction? Which of the current contradictory undercurrents on campuses and in the world will prove ascendant, for how long, and why? The only way I know of finding the answer is to bring opposing perspectives, experiences, beliefs, and ideas together into dialogue, problem solving, collaborative negotiation, and mediation, and listen to what emerges.

It may sound bizarre or self-serving, but I find it increasingly clear and open for all to see, that no single highly polarized political group is exclusively correct, that each is correct about something, and that the only intelligent way forward is together. For "higher education" institutions, this means encouraging learning through open discussion, dialogue, debate, negotiation, problem solving, mediation, and a search for restorative justice.

There are no unilateral judicial or military solutions to the wars being fought in Ukraine or the Middle East, or Sudan, Myanmar, DR Congo, and elsewhere. They lead only to death and misery, grief and guilt, environmentally unsustainability and self-destruction, so figuring out how to live together has to become a priority over anti-democratic, brutal, inhumane, potentially genocidal alternatives, or the consequences will begin to multiply, and worse disasters will follow. The choice is ours. In the end, as Hannah Arendt astutely observed,

No cause is left but the most ancient of all, the one, in fact, that from the beginning of our history has determined the very existence of politics: the cause of freedom versus tyranny.

The difference between these options inevitably becomes one of freedom of speech, freedom to learn, and freedom to imagine better ways of living, for each and for all, which requires us to learn how to settle, resolve, transform, and transcend the conflicts

Heidi and Guy's Response to Ken:

We like your piece very much and we certainly agree with your core argument that dialogue and deliberation are superior to power-over approaches to problem solving.  But I was left wondering about your thoughts on a few things you said:

One, with reference to free speech--should students be allowed to call for the murder of Jewish classmates? Is that permissible free speech?  

Second, do you think that it is primarily the right that is trying to constrain speech on campus?  Though that is happening in Florida (and possibly elsewhere in Trump-country that I don't know about), I see this as a much more common problem among the left who are widely known to try to prevent use of any language that might be construed as a micro-aggression, (except for threatening the life of Jews, which is somehow not a problem) and tries to prevent the teaching of conservative beliefs on issues ranging from race to U.S. history to climate change. Do you disagree with this "take"?

And thirdly, do you think it is possible to pursue a dialogic, deliberative, power-with approach with a party that is hell-bent to destroy you?  (Here, of course, I'm talking about Hamas.  We wrote the last couple of paragraphs on the last essay, and indeed, the whole essay on ripeness, trying to remain optimistic, that there could be a power-with way out of this mess.  But then I read the Wall Street Journal's editorial today and couldn't help but think that they tore our argument to pieces.

Ken's Response to Us

Thanks for your thoughtful responses Heidi - here are my ideas:

1.  No, but if we slip into this simple a response, we ignore the complexities of the issue, even in law.  The responses of the university presidents might have instead been a series of questions, like:  "No, but what if the statement was "Jews are murderers and ought to be punished"?  What if it was "Netanyahu and Ben Givir ought to get a taste of their own medicine"?  What if it was "Members of Hamas ought to be murdered'? Or "I hate Muslims"?  And so on.  There are way too many subtleties to treat this as a simple yes or no question.  These are like arguments against peace or pacifism that ask what you would do if someone came at you or a loved one with a knife — they are one-sided, overly simplistic, and intended to shut down unconventional ideas and free speech, rather than encourage and support them.  It was a hatchet job, and they fell into it. 

2.  Yes, it is primarily but not exclusively the right that is trying to constrain free speech on campus, because the attack on campuses, higher education, new ideas, democracy, political liberalism, democracy, diversity, etc. is fundamentally and essentially an autocratic process -- which doesn't mean there aren't autocrats, idiots, and people whose passion exceeds their understanding on the left (even Lenin wrote a famous pamphlet on "Left-Wing Communism: An Infantile Disorder"), but historically and philosophically these goals belong more to the left than to the right.  Micro-aggression is actually, I think, a very useful psychological idea, but one that requires a mediative response.  It's political misuse, in my view, reveals how little we understand about the systemic sources of racial and gender prejudices, and appreciate the subtle and widespread use of cognitive biases.

3.  Yes, but again, the answer can't be so simple and requires higher order skills, most of which the people you are describing entirely lack.  The real question is: how might it be possible to draw both sides into dialogues that acknowledge the mountains of grief and guilt on both sides.  T. S. Eliot, after WW II, asked "After such crimes, what forgiveness?"  How about if we start by asking, for example: "Whose children deserve to die?"  Or "What are you grieving most for, and why?" Yes, it is going to be incredibly difficult, but I have mediated with lots of people and groups that wanted to kill each other and brought them into empathy, dialogue, problem solving, and collaborative negotiation, without any idea at the beginning how that was going to succeed.  Indeed, that is the case in every mediation, and just because we don't know exactly what will turn it around doesn't mean it can't be done -- as it was in Belfast and countless other places.  Neither Israelis nor Palestinians are "in the mood" in the midst of war, and can't be until they finally, inevitably realize that murdering their opponent murders their own true selves, and plants the seeds for future murders.  Don't give up -- our methods are still primitive, but they work, and have shown themselves to be powerful beyond our ability and understanding. 

Heidi's Response to Ken

Thanks, Ken! I agree that dialogue has a lot of power, but I'm not as positive as you are that it can succeed in the case of Hamas, which gets its entire identity from being warriors against the infidels.  I hope you are right though! 

And Ken's Final Thoughts

Just to be clear, I agree, it may not be possible to succeed with Hamas, or with the Israeli ultra-right, but there are multiple tracks in peace building and conflict resolution, and it's important to engage in dialogue in as many as possible.  Even the IRA had to back down once its' former supporters turned against their violent tactics. 

Ken followed this email with another that contained a list of questions that could be used to open and conduct Israeli-Palestinian Dialogues.  That list is available here. 


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